The Obstinate Witness
Every trial lawyer encounters them – the witness who refuses to agree with even the most obvious point. Show them a photo of their car, and they claim they cannot recognize it. Confront them with a prior statement, and they insist it is inaccurate.
This is a strategy to frustrate you, to block you, and to control the narrative. How do jurors react? They see someone trying to hide something. Use this behavior to your advantage, showing the witness lacks credibility.
Understanding the Obstinate Witness
The obstinate witness disputes reality, argues every question, avoids “yes” answers, uses speeches, and controls the exchange. They behave this way out of fear of conceding even minor points, they’ve been coached this way, or that’s their personality.
What they misunderstand, though, is that jurors dislike evasiveness. They want fairness and truth. If a witness denies the sun is out, the jury sees they’re lying. It is our job to couch these refusals as dishonesty without bullying or appearing petty.
Questioning the Obstinate Witness
An obstinate witness prevails when you are unprepared. If you cannot impeach or pin them down, they escape. Know the records, statements, deposition transcripts, and the facts – anything to confront them when they deny an obvious point or fact.
Start your questioning with something they cannot disagree with, so that if they do, they look foolish. “The accident happened on X.” “The accident occurred at Y.”
Tie your questions to tangible anchors. Ask questions supported by photos, diagrams, maps, videos, calendars, medical records, receipts, e-mails, and correspondence. These force the witness to act absurdly if they deny your questions.
Script your questions so you start with undeniable truths, and ask as many of those as possible, before moving to disputed facts. If they fight you on the undisputed questions, they come across as liars when they fight you on items that are actually in dispute.
There are different techniques to question the obstinate witness:
The Step-Ladder approach. Start with trivial, undeniable truths. Move to slightly more meaningful points. Finally, approach the contested issue. Refusals along the way show dishonesty before you even reach the heart of the case.
The Boxing-In approach. Ask questions so each answer narrows options. When the witness denies the question, repeat the same question verbatim. Continue this process until jurors see the dodging.
Repeat and Stay Quiet approach. Repeat the same short questions word for word. After refusal, pause. The silence highlights the evasion.
One Fact approach. Reduce each question to only one fact. No adverbs, adjectives, or conclusions. Just nouns and verbs. Make them admit or deny that single point.
Questioning an obstinate witness takes on a rhythm. Use short, crisp, repetitive questions. No editorializing. Let refusals accumulate in the jurors’ minds.
Frame questions that jurors can answer themselves. They become participants. When the witness refuses, jurors know who is wrong.
Loop their words. Use their denial to create the next question. “You deny this is a stop sign?” “Yes.” “So, you are testifying that stop signs don’t exist?”
Use objective evidence. Use a photo, for example, to ask questions that the photo answers. “This is a photograph?” “Of your car?” “It shows the rear bumper?” “The bumper is not crushed?” “The bumper is not dented?” “The taillights are intact?” If they deny any of these questions, the jury sees the absurdity.
Handling narratives and arguments. When the witness is pontificating, interrupt gently but firmly. “That is not my question.” Repeat the question exactly. Their evasiveness will not go unnoticed. If need be, seek judicial intervention.
Cadence. Develop a cadence with short, declarative statements that invite “yes” answers.
Checklist for cross-examination of the obstinate witness:
• Review all prior testimony.
• Identify 20 obvious entry questions to start various lines of questioning.
• Script ladders of questions for each of these lines of questioning.
• Prepare exhibits to lock in the witness.
• Start with the most obvious questions.
• Use rhythm and cadence to your advantage.
• Use short questions that are declarative statements.
• Repeat verbatim when the witness denies an obvious question that deserves an affirmative response.
• Strategically use silence.
• Impeach only when necessary.
The obstinate witness may be a blessing in disguise. A witness only has their credibility and likability. The obstinate witness comes across neither as likable nor believable. If you can exploit their obstinacy, you’ve left their testimony in tatters.
Frank Ramos is a partner at Goldberg Segalla in Miami, where he practices commercial litigation, products, and catastrophic personal injury. You can follow him on LinkedIn.
The post Let The Liar Lie: Embracing The Obstinate Witness appeared first on Above the Law.
The Obstinate Witness
Every trial lawyer encounters them – the witness who refuses to agree with even the most obvious point. Show them a photo of their car, and they claim they cannot recognize it. Confront them with a prior statement, and they insist it is inaccurate.
This is a strategy to frustrate you, to block you, and to control the narrative. How do jurors react? They see someone trying to hide something. Use this behavior to your advantage, showing the witness lacks credibility.
Understanding the Obstinate Witness
The obstinate witness disputes reality, argues every question, avoids “yes” answers, uses speeches, and controls the exchange. They behave this way out of fear of conceding even minor points, they’ve been coached this way, or that’s their personality.
What they misunderstand, though, is that jurors dislike evasiveness. They want fairness and truth. If a witness denies the sun is out, the jury sees they’re lying. It is our job to couch these refusals as dishonesty without bullying or appearing petty.
Questioning the Obstinate Witness
An obstinate witness prevails when you are unprepared. If you cannot impeach or pin them down, they escape. Know the records, statements, deposition transcripts, and the facts – anything to confront them when they deny an obvious point or fact.
Start your questioning with something they cannot disagree with, so that if they do, they look foolish. “The accident happened on X.” “The accident occurred at Y.”
Tie your questions to tangible anchors. Ask questions supported by photos, diagrams, maps, videos, calendars, medical records, receipts, e-mails, and correspondence. These force the witness to act absurdly if they deny your questions.
Script your questions so you start with undeniable truths, and ask as many of those as possible, before moving to disputed facts. If they fight you on the undisputed questions, they come across as liars when they fight you on items that are actually in dispute.
There are different techniques to question the obstinate witness:
The Step-Ladder approach. Start with trivial, undeniable truths. Move to slightly more meaningful points. Finally, approach the contested issue. Refusals along the way show dishonesty before you even reach the heart of the case.
The Boxing-In approach. Ask questions so each answer narrows options. When the witness denies the question, repeat the same question verbatim. Continue this process until jurors see the dodging.
Repeat and Stay Quiet approach. Repeat the same short questions word for word. After refusal, pause. The silence highlights the evasion.
One Fact approach. Reduce each question to only one fact. No adverbs, adjectives, or conclusions. Just nouns and verbs. Make them admit or deny that single point.
Questioning an obstinate witness takes on a rhythm. Use short, crisp, repetitive questions. No editorializing. Let refusals accumulate in the jurors’ minds.
Frame questions that jurors can answer themselves. They become participants. When the witness refuses, jurors know who is wrong.
Loop their words. Use their denial to create the next question. “You deny this is a stop sign?” “Yes.” “So, you are testifying that stop signs don’t exist?”
Use objective evidence. Use a photo, for example, to ask questions that the photo answers. “This is a photograph?” “Of your car?” “It shows the rear bumper?” “The bumper is not crushed?” “The bumper is not dented?” “The taillights are intact?” If they deny any of these questions, the jury sees the absurdity.
Handling narratives and arguments. When the witness is pontificating, interrupt gently but firmly. “That is not my question.” Repeat the question exactly. Their evasiveness will not go unnoticed. If need be, seek judicial intervention.
Cadence. Develop a cadence with short, declarative statements that invite “yes” answers.
Checklist for cross-examination of the obstinate witness:
• Review all prior testimony.
• Identify 20 obvious entry questions to start various lines of questioning.
• Script ladders of questions for each of these lines of questioning.
• Prepare exhibits to lock in the witness.
• Start with the most obvious questions.
• Use rhythm and cadence to your advantage.
• Use short questions that are declarative statements.
• Repeat verbatim when the witness denies an obvious question that deserves an affirmative response.
• Strategically use silence.
• Impeach only when necessary.
The obstinate witness may be a blessing in disguise. A witness only has their credibility and likability. The obstinate witness comes across neither as likable nor believable. If you can exploit their obstinacy, you’ve left their testimony in tatters.
Frank Ramos is a partner at Goldberg Segalla in Miami, where he practices commercial litigation, products, and catastrophic personal injury. You can follow him on LinkedIn.
